Fifth Circuit Is Going To Take Another Swing At Its Extremely Messy Library Book Removal Decision

I supposed the court had no choice, but I'm always a little wary when the Fifth Circuit decides to take another look at some litigation, especially when it involves certain amendments like the First. Or the Fourth.

This case, however, is a mess. It began (as far too many do these days) with a supposedly concerned citizen griping about some books they'd likely never even looked at, much less read. Rather than approach the Llano County library directly, they took their complaints to county judge Ron Cunningham. The judge, unbelievably, ordered the library to remove the books, including the (and I'm quoting directly here) books about butts and farts."

Llano County Commissioner Jerry Moss also inserted himself into this mess by telling the library director to comply with the apparently unlawful order from the judge, telling her to pick her battles" and that refusing to comply with the judge's request would result in bad publicity."

Having succeeded with getting butts and farts" books off the shelves, another resident took a list written by former Texas state rep Matt Krause of books he considered to be pornographic filth" to the judge, who then ordered the library director to remove all books that depict any type of sexual activity or questionable nudity." (Matt Krause is exactly the sort of person you think he is, even if this is all you know about him at this point.)

While that order did not clear the shelves of dozens of romance novels, it did result in the removal of LGBTQ+ content, as well as two books about racism in the United States (Caste; They Called Themselves K.K.K.). These are the sorts of books being challenged and banned all over the US right now because the Party of Free Speech has collectively decided no one should be allowed to learn about endemic racism and/or sexual identity.

This resulted in a lawsuit to void the judge's order and return these books to the shelves. The lower court agreed with the plaintiffs and ordered the books to be made available again. The county appealed and the Fifth Circuit went to work making a mess of it.

The majority partly agreed with the plaintiffs. It said eight of the 17 pulled books needed to go back on the shelves. A concurring opinion pretty much agreed, but said the majority allowed too many books to be reinstated, taking issue with any of butts and farts" books due to their (alleged) lack of artistic merit.

I disagree, first, because not all of the books express an idea" or viewpoint" in the sense required by the caselaw. I am referring to the items we have needed to label for clarity as the butt and fart books." Viewpoints and ideas are few in number in a book titled Gary the Goose and His Gas on the Loose" - only juvenile, flatulent humor. Perhaps a librarian selected the book believing the juvenile content would encourage juveniles to read. Even if that is so, I do not find those books were removed on the basis of a dislike for the ideas within them when it has not been shown the books contain anyideaswith which to disagree.

A longer dissent made better points, even if it didn't really offer a clear path to victory for either party. It said the majority opinion was unworkable, because it applied subjective standards for book placement/removal that wouldn't have prevented what happened here. Instead, it would make curation almost impossible and, quite possibly, deprive librarians of any control over book selection.

It also pointed out that removing the subjective standards wasn't much better, which meant librarians could be forced to carry racist content just as surely as it would require them to carry books detailing racism in the United States. The final call, via the dissent, was this: curating public library content is government speech and, as such, the First Amendment standards do not apply. If we want libraries to do the best they can to serve their communities, librarians must be allowed the discretion to select books and decide which books they'd rather not have on their shelves.

The Associated Press is calling this a victory for Llano County officials, even though it's nothing more than a short order informing the public this case is going to be reheard.

The decision to rehear the case was a victory for Llano County, whose lawyers argued that there were numerous errors in the June 6 opinion, including the incorrect claim that the books had not been returned the shelves pending appeals.

As much as I dread the Fifth taking another swing at this, it kind of has to. The decision it handed down raised at least as many questions as it answered. The underlying problem - a cadre of close-minded individuals intent on ridding libraries of content they don't personally like - isn't going to be addressed, no matter what the en banc court decides.

But the least the court can do on the second pass is take a closer look at the directives issued by the county judge, which has nothing to do with discretion and curation, and everything to do with one branch of the government acting as a censor for a different branch of the government. That's the bigger issue here. Librarians should be allowed to curate content and they should be responsive to complaints from library patrons. But these patrons didn't talk to the library director. They went straight to a judge and got the judge to issue orders that overrode the discretion of librarians. And unless that gets addressed, this will become a favorite tool for people who think they should get to decide what content everyone has access to.